I just noticed that the Supreme Court has granted certiorari to hear a case in which the federal government is accused of violating the Religious Freedom Restoration Act of 1993 by seizing hallucinogenic controlled substances that are used by a religious group in religious tea ceremonies. The case is Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, No. 04-1084 (below on appeal it was O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004)). Peyote, anyone?

In O Centro Espirita, a panel of the Tenth Circuit Court of Appeals had upheld an injunction against the federal government, enjoining the government from relying on the federal Controlled Substances Act and the United Nations Convention on Psychotropic Substances to prevent Uniao do Vegetal and its members from using the hallucinogen hoasca in its sacramental rituals. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003). The injunction relied on the Religious Freedom Restoration Act for its basis. This case proves to be interesting since the Religious Freedom Restoration Act was Congress’s attempt (held to be unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507, 519 (1997)) to hit back after the Supreme Court held in Employment Division v. Smith, 494 U.S. 872 (1990), that a generally applicable and neutral law can apply to infringe on the free exercise of religion regardless of whether the government could demonstrate a compelling state interest for such infringement of free exercise. Smith, 494 U.S. at 885. This holding basically overturned what had been the standard rule for some time regarding the free exercise of religion: that the government could only infringe on it through a neutral law if it could demonstrate a compelling state interest for doing so. Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972). Justice Scalia, in writing the majority opinion in Smith justified this holding with reference to the famous case upholding laws criminalizing the religious practice of polygamy, Reynolds v. United States, 98 U.S. 145 (1879):

To make an individual’s obligation to obey such a [generally applicable law] contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S., at 167 — contradicts both constitutional tradition and common sense.

Smith, 494 U.S. at 885. The Tenth Circuit in O Centro Espirita affirmed the injunction en banc. Although City of Boerne held the Religious Freedom Restoration Act, which was Congress’s attempt to overturn the Supreme Court’s holding in Smith, was unconstitutional as applied to the states, it is still valid as applied to the federal government. Hence, this case will be interesting, depending on whether the Supreme Court upholds that posture–that the Religious Freedom Restoration Act applies to the federal government causing the exact opposite result from the Smith case, in which religious use of peyote was in issue.